Trial Run

In Pima County, crime doesn't pay. It costs taxpayers a bundle.

Public Defender Robert Hooker: "The County Attorney's Office is so paranoid and so insecure that they don't trust their lawyers to make decisions. Everything has to go through a screening process, and that screening process is designed to ensure the political career of Barbara LaWall."

Pima County Attorney Barbara LaWall has had a tough eight months in the headlines.

Since that fateful day last October when Dr. Brian Stidham was found beaten and stabbed in the parking lot of his northside medical offices, LaWall has been forced to transfer the high-profile homicide to Pinal County prosecutors because four of her lawyers had relationships with the man accused of hiring a hit man to kill Stidham, Dr. Bradley Schwartz, and/or with his on-again, off-again girlfriend, former prosecutor Lourdes Lopez. The county attorney has come under fire for refusing to release records regarding why she disciplined those four prosecutors, who have all since left her office. She's had her decision to suspend two of those prosecutors reversed by the county Merit Commission, which upheld her firing of a third. And, just weeks ago, she had to admit that her office bungled hundreds of domestic-violence and drug-possession cases in what she called a "system failure."

All that bad press didn't stop LaWall from making her annual appearance last week before the Board of Supervisors to plead for more money. LaWall wants two additional prosecutors, at a cost of $168,000.

The request drew an incredulous response from Supervisor Ann Day, who says the cost of law and order in Pima County is out of control.

"It's such a huge part of our budget that we need to get a handle on it," says Day.

Spending on justice agencies in Pima County has jumped from $138 million in 1996 to an anticipated $258 million in the budget that Pima County supervisors are now crafting for 2006.

That total includes federal and state grants, fees, fines, forfeitures and other revenue sources, so it's not all coming from the county's general fund, supported through property taxes. But more than $196 million is expected to come from the general fund this year, up from roughly $107 million in '96.

Part of that increased cost comes as a result of Pima County's growth: More people equals more crime. Part of it is because local jurisdictions are putting more cops on the street, which generates more cases in the court system. Part of it can be credited to ever-rising payroll costs associated with health insurance and employee benefits.

But critics continue to lay a big part of the blame for rising costs on LaWall's insistence on taking so many cases to trial rather than resolving them through plea bargains, which drives up the cost of jails, courts and indigent defense.

"While she's been asking us for money for prosecutors, we've been repeatedly asking her to lower the trial rate, and it's still high," says Day. "We figure that if we give more money, she'll just have more trials."

Pima County's high trial rate has long been a source of tension between county supervisors and county attorneys. Supervisors fund the justice system but have little control over policy, because as an elected official, the county attorney answers to voters, not to the county administration.

Under LaWall's predecessor, Democrat Steve Neely, the county's trial rate climbed as high as 16 percent in 1993, although that balloon had deflated by the time LaWall took office in January 1997.

LaWall says she's responded to criticism by trimming the trial rate, particularly in the area of drug crimes, which are often resolved through diversion to a drug-court program. By LaWall's calculations, the trial rate hovered around 10 percent until about two years ago, when it dropped to just below 8 percent. LaWall's numbers show she took 426 cases to trial in her first fiscal year, compared to 337 in the fiscal year that ended last June 30.

"The myth that has been perpetuated that the county attorney's trial rate is driving the cost of the criminal justice system is not correct," LaWall says.

But at 8 percent, Pima County's trial rate remains significantly higher than Maricopa County, where only 1.4 percent of cases went to trial in the last full fiscal year, according to J.W. Brown, communications director for Maricopa County Superior Court. In that year, Maricopa County prosecutors took 498 cases to trial.

Pima County's new public defender, Robert Hooker, says that LaWall's trial-rate numbers don't mean much unless you know when defendants agreed to a plea.

"If you don't get a good plea agreement until two or three days before the trial, you've cut down the trial rate, but you haven't cut down the time a whole heck of a lot," says Hooker, who adds that Pima County prosecutors routinely offer tough plea bargains and negotiate downward. "I can't think of a single instance in the last several years in my own private practice that the first plea offer was one that was acceptable and didn't get better."

Hooker, who has been on the job full-time since April 1, isn't shy about taking the fight to LaWall.

"The county attorney's office is so paranoid and so insecure that they don't trust their lawyers to make decisions," says Hooker. "Everything has to go through a screening process, and that screening process is designed to ensure the political career of Barbara LaWall."

Hooker, who has also served as a Superior Court judge, is an outsider taking over a firm of 60 lawyers who handle cases ranging from DUIs to the death penalty. For the last 15 years, the Public Defender's Office was under the command of Susan Kettlewell, a veteran public defender who had toiled in trenches for a decade before taking over the top spot.

Over the last decade, the cost of indigent defense has soared, from $10.3 million in the '96 budget to a proposed $25 million in the '06 budget.

Hooker's biggest challenge: Directing his staff to take on more clients so that fewer cases have to be handled by contract attorneys in private practice.

The major problems of the Public Defender's Office were spelled out in a report in April 2004 from the Spangenberg Group, a consulting agency which concluded that the lawyers in the Public Defender's Office had no clear guidelines regarding their workload. When public defenders decide they are too overworked to give their clients a competent defense, they decline to take on any additional cases, which requires they be outsourced to contract attorneys.

Last year, the Public Defender's Office handled about 40 percent of the indigent defense caseload. Another 20 percent of cases were handled by the county's Legal Defender's Office, which handles cases involving multiple defendants and potential conflicts of interest or other special circumstances.

The remaining 40 percent of cases were farmed out to contract attorneys, who are expected to cost the county nearly $7.8 million this fiscal year. Next year, Pima County Administrator Chuck Huckelberry expects to spend more than $9.1 million--a major source of frustration to the Board of Supervisors.

Board Chairwoman Sharon Bronson, a Democrat who represents District 3, says she hopes that Hooker's "No. 1 priority" will be taking on more cases and reducing the cost of contract attorneys.

The number of contract attorneys has ballooned over the last decade, partially because the staff at the Public Defender's Office has been frozen at 60 lawyers since 1994, says Hooker. This year, Huckelberry is recommending an additional 10 attorneys be added to the staff.

Hooker says more lawyers are the first step to stepping up so that the PD's office handles as much as 75 percent of the cases, leaving just about 5 percent in the hands of contract attorneys.

"We can do it better, and we can do it cheaper," Hooker says.

Hooker has yet to get a handle on the caseload issue. One key that's still missing--as basic as it sounds--is a clear method of determining how many cases are being handled. Right now, cases are counted differently by the PD's office, the prosecutors and the courts.

Hooker is devising other strategies to allow public defenders to take on more cases, such as implementing a functional computer system and hiring more support staff so lawyers have to do less research and other scut work. He also wants to see his attorneys take on more capital cases and hand off the misdemeanors to contract attorneys.

To prepare for the shift, he's putting his attorneys into training with legendary local attorney Bob Hirsh, who is shuttering his private practice to join the Public Defender's Office.

"He's the best lawyer I know," says Hooker, who adds that he was "more happy than surprised" when Hirsh signed on.

In the course of auditing the Public Defender's Office, the Spangenberg team examined other areas of the criminal justice system and came to the conclusion that the various agencies had little substantive communication with each other.

"We have been told repeatedly that there has been a serious lack of communication, coordination and cooperation among the criminal justice agencies in the county," the Spangenberg report states, adding that "the general distrust between the agencies and the county, which stems from the lack of communication and information, appears at times to have turned into personal attacks and defensiveness."

The communication problems has led to a dysfunctional justice system and higher costs to taxpayers, says Huckelberry, who has been urging the Board of Supervisors to pass an ordinance that would force the various justice agencies to meet four times a year to discuss the impact of policy decisions and budget requests.

Bronson agrees that the justice system needs serious reform.

"We need to see cost control," Bronson says. "We need to see effective delivery of justice. I don't think it's effective right now, because there is not sufficient coordination. Without effective coordination between the county attorney, the public defender, probation, pretrial services, Superior Court and the Justice Courts, we're not going to achieve real sound fiscal management."

Nonetheless, the board is backing away from Huckelberry's proposed ordinance now that the various justice agencies have formed their own Justice Coordinating Council, which has been meeting every two weeks to hammer out policy concerns.

While LaWall and Superior Court Presiding Judge John Leonardo have argued that a county ordinance forcing agencies to meet would intrude on their independent authority, both are supporters of the voluntary Justice Coordinating Council.

"I think it's a very good idea, because the system is so fragmented," says LaWall. "Because of the adversarial nature of the system, we tend to lose sight of the fact that we need to develop some communication and collaboration across lines."

LaWall says she's willing to discuss the impact of her policies, although she's not going to negotiate them in the coordinating council.

"I don't think it's appropriate for the courts and the public defender to weigh in on plea policies of the county attorney," LaWall says. "But I think it's fair game to talk about the impact and then make a request: 'Are you willing to go back to your office with your appropriate people and discuss altering, modifying, changing it?' Absolutely I'm willing to do that."

All sides agree that the coordinating council has already helped improve communication. For example, Hooker says that the jail staff is more accommodating to public defenders who need to interview incarcerated clients. The Spangenberg report revealed that attorneys sometimes had to wait hours to conduct brief interviews.

"We've seen a quicker response time," Hooker says, "and that's because we've been sitting down and discussing it."

A new jail video system that supposed to be operational this summer could make attorney-client conferences even easier, but Hooker warns that substantive conversations will still have to take place face-to-face.

"I don't care what kind of security they say they're going to give us," Hooker says. "It's just like the telephones. We're not going to have substantive, factual-based conversations with our clients on video conferencing. There's not a history here, but there's a history in the country of abuses."

The coordinating council, whose meetings are closed to the press, is now focusing on other problems that continue to jam up the justice system, such as the trend of holding too many defendants in the county jail while prosecutors evaluate whether to pursue charges.

But Hooker warns that cost control won't happen until the county attorney reduces the number of cases she takes to trial.

"They need to be brought under control," Hooker says. "They need to have more sensitivity to the impact that their policies make on the rest of the system, and they ought to have more responsible fiscal response. Right now, they can make whatever legal policy they want, and we have to respond to it."